California's AG wins praise, criticism for Prop 8 stance

A generation ago, then-Gov. Jerry Brown's conscientious stand against the death penalty prompted a revolt in the Legislature and eventually spurred voters to throw out his appointee as chief justice of the California Supreme Court.

Now the 70-year-old attorney general and would-be 2010 gubernatorial candidate is stirring a new storm by his legal challenge to voters' approval of a measure banning gay marriage in California.

It's a move that could pay political dividends in a June 2010 Democratic primary against another likely gubernatorial candidate, San Francisco mayor and gay marriage champion Gavin Newsom.

After initially indicating his office would defend the "will of the people" in the Nov. 4 election, Brown filed a 91-page legal brief Dec. 19 arguing that Proposition 8 violated an "inalienable right of liberty."

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His intervention is hailed in heroic terms by Proposition 8 opponents – even though Brown also rejected the opponents' core legal argument challenging the initiative.

"I think Jerry Brown becomes an historic figure in this," said Rick Jacobs, chair of the Courage Campaign, which supports gay marriage. "He has shown that the attorney general can and will stand up for the rights of the minority in this state.

"I think he is Madisonian. He opposes the tyranny of the majority."

Yet gay marriage opponents say Brown is abandoning his statutory role as attorney general by refusing to represent the majority of voters who approved Proposition 8 as an amendment to the state constitution.

"It is wrong for politicians to elevate their own views of what the law should be over what the constitution says the law actually is," wrote Frank Schubert, director of the Yes on 8 campaign. "Doing so is not only illegal. It undermines the legitimacy of government itself."

Brown's legal brief argues that the attorney general's obligation to "uphold the whole of the Constitution" supersedes his role in defending a voter-passed initiative.

Brown likens his actions to that of state Attorney General Thomas Lynch, who in 1964 challenged voters' passage of Proposition 14, a measure that overturned a state law against housing discrimination. Proposition 14 – also an amendment to the state constitution – was later overturned by the U.S. Supreme Court.

Brown's increased profile in the battle comes as the California Supreme Court in March is to hear three lawsuits challenging Proposition 8. The court also will consider whether to invalidate 18,000 existing same-sex marriages.

Brown said he and his attorneys argue in a "well-thought-through" brief that the right to gay marriage is protected by guarantees of basic liberties under Article One of the California Constitution.

"Those basic guarantees of liberty mean something special," Brown said in an interview. "That certainly requires that they not be stripped away like any other state rule or statute."

He also argues that Proposition 8 should be struck down based on the May 2008 state Supreme Court decision that legalized same-sex marriage "as a basic civil right" in overturning Proposition 22 – a measure passed by voters in 2000.

Yet Brown's brief also rejects a key legal argument by No on 8 advocates who said the initiative was a constitutional revision that required a two-thirds vote of the Legislature to get on the ballot.

Brown's gay marriage brief is far from his first controversial stand on his convictions.

In 1977, the state Legislature overturned Brown's veto of a state death penalty law. And his appointment of liberal, anti-death penalty jurist Rose Bird as chief justice of the state Supreme Court led to a voter backlash and Bird's ouster from the court in 1986.

"Challenging Proposition 8 on broad, fundamental grounds is very much consistent with Jerry Brown's reputation," said Darry Sragow, a public policy lawyer and veteran Democratic political strategist. "This is a man who likes to think big thoughts. This is a challenge that is consistent with that."

Brown strongly hints he will run for governor again, yet he said he is in no hurry to announce a decision. Asked whether gay marriage will be a dominant issue in the 2010 contest, he said, "I don't know, and I'm not going to speculate.

"This (marriage) is such a closely divided issue. It's not one that politicians are drawn toward."

But the issue may well boost him in the primary election among Democratic voters who widely favor same-sex marriage.

While San Francisco Mayor Gavin Newsom is most identified as the Democrats' leading gay marriage advocate, "now it looks like a two-man race" on the issue, said Dan Schnur, director of the Jesse M. Unruh Institute of Politics at the University of Southern California and a former Republican strategist.

Newsom – who opened his City Hall to same-sex weddings – is challenged to be perceived as more than a single-issue candidate. Brown takes on the issue with less political downside.

"Jerry Brown has a lot more leeway on this than a lot of other candidates because he is more defined," Sragow said. "From voters' perspective, this is but a page from a big book on Jerry Brown."

In an article with fellow Davis law professor Alan Brownstein, Amar wrote that Brown's argument "is an invitation to the court to step outside of the box entirely and ask some fundamental questions about the purpose and meaning of a state constitution."

Brown's attempt to block Proposition 8 leaves the initiative to be defended by the Yes on 8 campaign and its legal team, led by Kenneth Starr, the former independent counsel who investigated President Bill Clinton.

Yes on 8 director Schubert ripped Brown in his weekly Web column as a sore loser "who doesn't much like the result of the election."

Dismissing Brown's "concocted" legal theory defining gay marriage as a basic liberty, he wrote: "I wonder what the attorney general would have to say to the bar owner who argues that he need not collect the state's alcohol tax because it violates his inalienable right to liberty or to the business owner who refuses to pay the state's income tax because it infringes on his inalienable right to happiness."

Last summer, Brown scored a legal victory over Proposition 8 supporters when a Sacramento judge approved his ballot title for the measure defining marriage as only between a man and a woman. Brown's rewrite of the title said the initiative would "eliminate the right of same-sex couples to marry."

Brown scoffs at the latest criticism leveled by initiative backers.

"They (Proposition 8 proponents) said I said falsely that it eliminated the right to marriage," Brown said. "But they were false. It did eliminate the right to marriage. How come they said it? Pure propaganda, pure hardball politics seeking advantage at the expense of the truth.

"This post-election attack is in the same vein and smells of the same infirmity."